Fant v. Gadberry , 39 S.C.L. 10 ( 1851 )

Curia, per O’Neale, J.

In this case the plaintiff described the note as the note of J. M. Gadberry. To support that allegation, he offered in evidence the note of Gadberry & Fant. The variance is plain and fatal.

It is very true, if he had given a proper description of the note, such as is suggested in the report, and had followed it up by proof that there was no such firm as Gadberry &. Fant, and that Gadberry signed the note, in the names of parties who could not be liable, he (Gadberry) would have thus been made liable himself.

There was no proof to sustain the money count. There was nothing to shew that its consideration was received by the defendant. So, too, conceding to the plaintiff, that the note is the evidence, by the -words “ value received,” of so much money received to the use of the plaintiff: — yet looking to the note alone, it is the evidence of the receipt of that much by Gadber-ry & Fant.

The motion to amend was properly overruled by the Court. Such a motion can very rarely be allowed at the trial term. Certainly it is generally improper, when the case is on trial, and much -more so, when a motion for nonsuit is made, argued and decided, and nothing remains but to enter it.

The motion is dismissed.

Evans, Wardlaw, Frost, Withers and Whitner, JJ. concurred.

Motion dismissed.